R. v. L.W.T. Date:, 2017 BCPC 65

Citation: R. v. L.W.T. Date: 20170216 2017 BCPC 65 File No: 4156-2-C Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.W.T. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. P. MACCARTHY Counsel for the Crown: Brad Tomlin Counsel for the Defendant: Scott Sheets Place of Hearing: Duncan , B.C. Date of Hearing: February 16, 2017 Date of Judgment: February 16, 2017

INTRODUCTION [ 1 ] L.W.T., hereinafter referred to as (the "Youth") and who is at this time 14 years of age, having been born on [deleted for publication] , has been charged with an arson offence under s. 434 of the Criminal Code that he, on or about the 21st day of December 2016, did intentionally or recklessly cause damage by fire or explosion to property, a dwelling house, not owned in whole or part by him. [ 2 ] The residence that was the subject matter of the arson offence was premises occupied by his family.

The provisions of s. 434 of the Criminal Code provide that a person who is guilty of this particular offence is liable to imprisonment for a term not exceeding 14 years. The Crown has proceeded by way of indictment with respect to this particular charge. [ 3 ] The Youth has remained in custody in a youth detention facility since his apprehension on or about December 21st, 2016.

He has entered a plea of guilty with respect to this particular offence at the earliest opportunity, which was shortly after the offence occurred. [ 4 ] The task of this court is to determine a fit sentence for the Youth pursuant to the provisions of the Youth Criminal Justice Act , S.C. 2002, Ch. 1 (" YCJA "). [ 5 ] The Crown is seeking a deferred custody and supervision order with a period of probation. The defence is seeking a period of probation.

Crown and defence do agree that any sentence that this court imposes should have as a primary goal the rehabilitation of the Youth and his successful reintegration back into the community. THE OFFENCE [ 6 ] The Crown has outlined the circumstances with respect to this particular offence. The offence occurred approximately midday on December 21st, 2016. The Youth's father had reported him missing to the RCMP, having apparently jumped out of a window at the family home. The Youth had a history of running away. [ 7 ] The father was in the process of recovering from a serious kidney operation.

The family had a plan to relocate to Vancouver in order to assist in the father's rehabilitation. The family also consisted, in addition to the parents and the Youth, of two younger siblings. There was a suggestion about all of the family relocating and travelling to Vancouver together. The Youth was opposed to that, did not want to go, and accordingly, it appears that this was his motivation for running away. [ 8 ] The family members were in the process of trying to locate the Youth, and in doing so, they left their residence.

It was during their period of absence that the Youth returned to the residence and set a series of fires in multiple locations, including the downstairs area and also in three upstairs rooms, which I understand to be bedrooms. [ 9 ] The result of the fire was a significant amount of damage to the residence. The fire department was summonsed in order to put out the fire.

Notwithstanding the fact that the extinguishment was successful, there was significant smoke damage to the unit and to its contents. [ 10 ] It has left the family essentially homeless, unable to return to that particular location, and dependent upon residing with family members. The circumstances that have been presented by Crown also indicate that there was a significant loss of family heirlooms.

Also there has been a subsequent decision made by the housing authority which operates that particular unit that the family will not be welcome back to the residence. [ 11 ] The situation as it presently stands is that the family still remains dependent upon temporary housing. The reintegration of the Youth with his family is not a viable option given the concerns of the family about safety issues arising out of the Youth's conduct.

There are also serious family dynamics issues which need to be resolved before any successful integration can be contemplated. [ 12 ] I do not have before me anything in the nature of a victim impact statement. However, various portions of a number of reports before me do provide some insight into some of the issues concerning this family, both predating as well as following the offending events of the Youth. BACKGROUND OF THE YOUTH [ 13 ] A number of reports have been made exhibits in this proceeding.

These reports provide significant information about the background of and the insight of the Youth towards the offence which he has committed. These reports are as follows: (

a) a Pre-Sentence Report dated January 26, 2017, prepared by Michael Burke, Youth Probation Officer with the Duncan Probation Office; (

b) a Psychiatry Report dated January 26, 2017, prepared by Kulwant Riar, M.B.B.S., FRCP(C), a psychiatrist with the In-patient Assessment Unit, Youth Forensic Psychiatric Services; (

c) a Psychosocial History Report dated January 23rd, 2017, prepared by Kate Creedon, M.A., psychiatric social worker, Victoria Out-patient Clinic, Youth Forensic Psychiatric Services; and, (

d) Minutes of an s. 19 YCJA conference held on February 2nd, 2017, created by Michael Burke, Youth Probation Officer. [ 14 ] The following profile emerges about this 14-year-old. First, the Youth is a member of a local First Nations community in the (omitted). The family has had a long tradition of cultural involvement within that community. The family also has throughout the course of the past several years sought to obtain guidance from elders of their local First Nations community in connection with the Youth.

[ 15 ] Second, the Youth has no prior involvement with courts, or a youth criminal record. A couple of the reports indicate that he does not use drugs or alcohol and has been engaged in sporting activities. The report of Dr.

Riar makes mention of a “drug habit” and the active use of marijuana on a twice a day basis since age 13. [ 16 ] Third, he has been remanded at the Youth Detention Centre since his arrest, and during that period of time, he has done well under custodial supervision attaining positive reports which place him at behaviour Level 4, which is the highest level that a youth can obtain for good behaviour. He regularly volunteers to do extra cleaning on his unit. He is described as being polite and quiet.

He has also demonstrated success in not participating in bullying of other youth who were also being held at that particular detention centre, and he avoided participation in any such other negative behaviours. He has been attending school while he has been held at the Youth Detention Centre, and he is taking Grade 9 classes and also Woodwork, Social Studies, English, and Math. [ 17 ] The Pre-Sentence report prepared by Michael Burke also paints a troubling picture of the Youth's upbringing. The family has had some clear issues of dysfunction, which has been evidenced by family violence.

There have been interventions by the Ministry of Children and Family such that the Youth was removed from the care of his parents owing to witnessing domestic violence, experiencing neglect and inconsistent parenting. [ 18 ] Those removals were fraught with some problems. There were allegations that the Youth was both significantly traumatized by those events and was the subject of sexual abuse while in foster care perpetrated by an older child in the foster placement. Ultimately, the Youth was returned to his father's care. [ 19 ] There are reports of concern about what is described in Mr.

Burke's report as "inappropriate physical discipline" of the Youth. There are clearly issues of concern by the parent father about the Youth’s recent history of what is described as "lying, stealing, and skipping school"; the resulting punishment has been in the nature of corporal punishment, including being spanked, forced to take cold showers, and being “grounded”. [ 20 ] The report does go on to indicate that the Youth has had idealization of suicide. There has been concern about issues of depression. [ 21 ] There is contained within Mr.

Burke's report a Gladue component which lays out some of the important factors that a court must take into consideration in determining a fit sentence for any First Nations offenders. [ 22 ] The report notes a somewhat disrupted educational experience for the Youth. He was easily distracted and insubordinate to teachers. He was becoming the subject of school discipline, including detentions. This prompted the Youth to start a pattern of running away from home. There was also a concern about thefts by the Youth while attending school.

Eventually, there was an expulsion from that particular school that he was attending. The report indicates that the Youth would not be welcome back at that school because of the necessity of a continuous level of supervision and also concerns based on the pattern of running away and concerns about suicidal thoughts. [ 23 ] The Pre-sentence report also examines the attitude of the Youth towards the offence. There are some concerns raised by the responses provided to Mr. Burke by the Youth.

I quote as follows: (The Youth) acknowledges that he set several fires within his home while his family was out searching for him after he had run away. He explains he ran away because he was angry that he would need to return to Vancouver with his family for his father's follow up medical treatment related to his kidney transplant. He notes that his anger was focused on not wanting to be away from his friends at school in Duncan. He acknowledges that at first he lit the fires with the intention of killing himself, but then became scared.

He also notes that when he was found after lighting the fires he told police that his family had burned in the fire. [ 24 ] The report goes on to indicate that the Youth expressed that he wished that he had not lit the fires, and was concerned that his family would be angry with him for what he did. But the notation of Mr.

Burke was to the effect that the Youth did not seem to be aware that his actions now resulted in his family needing to find alternate living accommodation. [ 25 ] As I had previously indicated, the family has sought assistance from the elders of their First Nations community to deal with the untoward behaviour of the Youth from time to time.

That did not result in any substantial change of the Youth's behaviour prior to these offences taking place. [ 26 ] The report makes it clear that the members of the extended family have some significant insight towards the life that this Youth has led, and also the problems that the Youth has had to endure, as well as the problems that the Youth has caused both to the immediate as well as to the more extended family. PSYCHIATRIC EVALUATION OF THE YOUTH [ 27 ] The report prepared by Dr.

Riar also provides significant insight to the Youth. [ 28 ] There is a recitation of the attempts by the psychiatrist to have the Youth deal with and discuss the offending behaviour. The indication is that the Youth was not prepared to be candid about the circumstances, indicating that the fire was actually set at a neighbour's house and not his home. There was a reluctance to provide candid disclosure about what is described as the “first reason” for setting the fire.

The “second reason” for setting the fire apparently was characterized in such a fashion as the Youth seeking to gain a reputation and status such that no one would take a chance in sending him to a camp or to a certain placement. [ 29 ] The report from Dr. Riar makes the following observation, and I quote: His whole story was quite convincing. He did not feel embarrassed or shameful when challenged about his story and simply maintained that he had made it up as he did not want to tell the truth.

[ 30 ] A further provision of Dr. Riar's report reads as follows, and I quote: When questioned about whether he thought about where his family would live before he set the house on fire, he was very vague stating that his family has been living in his grandparents' basement and they would have lived there regardless. He could not provide an answer when questioned about whether he had thought about where he would live if he set his house on fire. He mentioned that he is feeling bad about it as he is in jail and not in school. He stated that his neighbour has "nowhere to live and feels bad about it".

He also stated that if he knew that it was only three days until Christmas, he would not have set the fire as "Christmas time is for giving, not hurting people." [ 31 ] Psychological testing was undertaken by Dr. Riar. Under the heading of "Summary," some analysis is provided concerning the psychological profile of the Youth.

There is a mention that when this child was returned from foster care in around 2012 to care under his father, that the Youth's "oppositional and anti-authority behaviour started to escalate", difficulties at school became problematic, he started to run away from school and he developed a habit of stealing from his own home and from others. [ 32 ] In addition, there is a concern expressed about the family dynamics and there is an indication that the Youth had very little to do with his family and especially with his younger siblings.

Then there is a further conclusion that reads as follows, and I quote: As far as his mental health is concerned, he did not display any obvious signs of having a mental disorder, however, there is underlying resentment, anger, and feelings of being unjustly treated. This has resulted in (the Youth) experiencing low mood, anxiety, opposition, and anti-authority and rebellious attitudes. Also, this has given him feelings of worthlessness and helplessness as he believes that no matter what he does, his situation will not improve.

He has resigned to the fact that his life will not pan out to anything and likely he will spend his life in jail. As far as his actions and behaviours related to the offence in question, it does not seem like that fire-setting was an impulsive act. According to him, he thought about it for some time before setting the house on fire and was looking for the perfect opportunity to do so. This indicates that he has underlying anger or resentment towards his family members and this act was one of an extreme form of passive-aggressive behaviour.

According to him, he knows why he set the house on fire but does not want to share his reasoning with anyone which makes me believe that it likely was

an act of revenge or vengeance. He was quite callous about the whole situation and did not express an empathy or sympathy for anybody. In fact, he does not see anything wrong in doing what he has done. Diagnostically, except for having some attentional problems and mild marihuana use, there are no other overt diagnoses of any kind. Having said that, I believe that the underlying anger and resentment possessed by him has resulted in intense depression, anxiety, self- militating behaviours, and other passive-aggressive behaviours like the offence in question. [ 33 ] In Dr.

Riar's report, as a result of the psychological testing, the psychiatrist observes that the actions taken by the Youth and his response of acting out in retribution for perceived maltreatment that he experienced in the past has caused him to further push away from those who care for him.

This has compounded his feelings and his beliefs that he is "unworthy of care and cannot be counted on to care and others cannot be counted on to care for him." The observation was also made that the Youth has "invested in his identity as a troubled and anti-social youth with a few relationships and takes some pride in his ostensibly callous and uncaring presentation." He is also described as being potentially suspicious of and distrustful of mental health professionals.

The suggestion is that he would be actively obstructive by resisting self-disclosure if he were to be undergoing therapy. [ 34 ] There is an overall concern that the Youth is at risk to re-offend and that concern is a matter that this court must take into consideration when determining a fit sentence and an appropriate sentence for this young person. [ 35 ] The psychiatrist states that risk in the following fashion, and I quote: As far as [the Youth's] risk is concerned, I believe that he is at quite high risk of putting himself or others in harm's way. If unaddressed, (the Youth'

s) underlying anger and resentment coupled with his young age and any future indulgence of alcohol and other illicit drugs would increase his risk even further. [ 36 ] From the s. 19 YCJ Conference, a number of resource individuals, as well as nuclear and extended family members, met in order to work out a suitable plan for the re-integration of the Youth back into the community. That has included putting in place plans for suitable staffing and supervision at a local group home in the (omitted).

The issue of the Youth's continuing education has not yet been determined, but will be somewhat dependent upon meeting with the local alternate school in order to attempt to craft a program suitable for the Youth. [ 37 ] Discussions took place concerning various full-time attendance programs, including the Head Start Program in Campbell River and another program called the Camp Trapping Program in Prince George. There is an indication in the report prepared by Mr. Burke that there was not a positive response by the Youth to these types of suggestions for his programs.

In fact there is a clear indication in the various reports that I have read that the Youth has been somewhat adversely influenced by his fellow youth at the Youth Detention Centre who have been giving him some advice, which I will call poor and negative advice, concerning his various options that may be presented to him. [ 38 ] Mr.

Burke does note that when he raised the potential of attendance at Camp Trapping, the Youth stated to him in the following fashion: "If you send me to Camp Trapping, I will be mad, and I will burn Camp Trapping down." That comment, no matter in what context it may have been expressed, is of course, of significant concern when determining what may be an appropriate sentence for the Youth and it may cause some concerns about the programs that therefore may become available to him. [ 39 ] I have received submissions from defence counsel to the effect that this comment may have been taken out of context.

However, no matter what the context may have been, it obviously raises concern in the mind of those seeking to find appropriate resources for this Youth and it may in fact place some limitations on those resources, with concerns about possibly endangering the life or safety of other individuals.

[ 40 ] I can say that as a result of my direct discussions with the Youth in court today, he does express what I take to be genuine remorse for his actions, and the injury and damage that has caused to his family unit. That in itself appears to be a measure of growth since the preparation of the various reports that are now before me. YOUTH CRIMINAL JUSTICE ACT PROVISIONS [ 41 ] The broad principles that govern judges in the sentencing of young persons are found in s. 3 of the YCJA . Specifically, s. 3(1) states the following principles apply in this Act: (

a) The youth criminal justice system is intended to protect the public by

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;… [ 42 ] Section 38(1) of the YCJA more fully describes the applicable sentencing purposes that apply to young persons. Thereafter, s. 38(2)(e)(

i) requires a sentencing judge to impose the least restrictive sentence that is appropriate. Purpose 38(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (

f) subject to paragraph (c), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[ 43 ] Pursuant to s. 39(9) of the YCJA , the court must state the reasons why a non-custodial sentence is not adequate to achieve the purpose set out in s. 38(1) : 39(9): If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1) , including, if applicable, the reasons why the case is an exceptional case under paragraph (1)(d). [ 44 ] Sections 39(1) (

a) to (

d) inclusive of the YCJA set out what is sometimes referred to as the "gateways to custody" provisions. A sentencing judge may not commit a young person to custody unless the young person has been convicted of certain specified offences. The provisions of s. 39(1) are as follows: A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985; or (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [ 45 ] Sub (2) reads: If any of paragraphs (1) (

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38. [ 46 ] Sub (3) reads: In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. [ 47 ]

Section 42 of the YCJA specifies the available sentences for a young person. Relevant to this case are sections 42(2)(k), (l), (m), (n), (p), and (s): 42(1) A youth justice court shall, before imposing a youth sentence, consider any recommendations submitted under

section 41, any pre-sentence report, any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person, and any other relevant information before the court.

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and… (

k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years; (

l) subject to subsection (3) (agreement of provincial director), order the young person into an intensive support and supervision program approved by the provincial director; (

m) subject to subsection (3) (agreement of provincial director) and

section 54, order the young person to attend a non-residential program approved by the provincial director, at the times and on the terms that the court may fix, for a maximum of two hundred and forty hours, over a period not exceeding six months; (

n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period — which is one half as long as the first — be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order… (

p) subject to subsection (5), make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in subsection 105(2), and to any conditions set out in subsection 105(3) that the court considers appropriate…

(

s) impose on the young person any other reasonable and ancillary conditions that the court considers advisable and in the bestinterests of the young person and the public. [48] Section 42 (5) provides as follows:

(5) The court may make a deferred custody and supervision order under paragraph 2(

p) if (

a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts tocause serious bodily harm; and (

b) it is consistent with the purpose and principles set out in

section 38 and the restrictions on custody set out in

section 39. [49] The term custodial portion is defined in s. 2: custodial portion, with respect to a youth sentence imposed on a young person under paragraph 42(2)(n), (o), (

q) or (r), means the periodof time, or the portion of the young person's youth sentence, that must be served in custody before he or she begins to serve theremainder under supervision in the community subject to conditions under paragraph 42(2)(

n) or under conditional supervision underparagraph 42(2)(o), (

q) or (r). [50] Importantly, the date that a sentence comes into effect is found in s. 42(12):

(12) A youth sentence or any part of it comes into force on the date on which it is imposed or on any later date that the youth justicecourt specifies. [51] The duration of a youth sentence for a single offence and for different offences is dealt with in sections 42(14) and (15). Subsection 14 is applicable to this matter:

(14) No youth sentence, other than an order made under paragraph (2)(j), (n), (o), (

q) or (r), shall continue in force for more than twoyears. If the youth sentence comprises more than one sanction imposed at the same time in respect of the same offence, the combinedduration of the sanctions shall not exceed two years, unless the sentence includes a sanction under paragraph (2)(j), (n), (o), (

q) or (

r) thatexceeds two years. POSITION OF CROWN ON SENTENCING [52] Crown submits that the circumstances of this offence require the imposition of a deferred custody and supervision order of aduration of six months in order to abide by the maximum allowable times for various sanctions. Crown suggests that there then be astraight probation order for a period of 18 months.

Both the probation order and the deferred custody and supervision order wouldcontain a provision to permit intensive support and supervision. [53] Crown says, and I accept, that it is aggravating that the offence was directed at the family home and for what appears to be veryselfish reasons. The Crown also indicates that there has been extensive harm done to the victims, namely, the other family members as aresult of this offending behaviour.

The Crown also says that there is a necessity to have protective conditions for the community in anysentences imposed, as a result of what appears to be a high risk of the Youth re-offending, based on the psychiatry report conclusions.

Itis also aggravating that there appears to be a lack of willingness to engage in the various programs that are being suggested, based uponwhat I have referred to as a reliance on poor and negative advice; that inappropriate advice is being given to the Youth by persons withwhom he is sharing custody at the Youth Detention Centre. [54] Reliance is placed by Crown on s. 39(1) -sub -- [55] MR.

SHEETS: 39(1)(d), I think, Your Honour. [56] THE COURT: Yes, thank you. 39(1)(d), that this is a case where a custodial sentence or a form of a custodial sentence isnecessary because it is an exceptional case where the Youth has committed an indictable offence and where there are other aggravatingcircumstances that would make the imposition of a non-custodial sentencing inconsistent with the purpose and the principles set out in s.38 of the YCJA. [57] Crown has referred the court to and relies upon three decisions as follows: (

a) R. v. A.B.W., [2003] B.C.J. No. 3013, 2003 BCPC 455 a decision of the Honourable Judge Blake of the Youth Court of BritishColumbia; (

b) R. v. X., [2013] B.C.J. No. 1667, [2013] B.C.P.C. 209, a decision of the Honourable Judge J. O'C. Wingham of this court; (

c) R. v. S.T., 2009 BCCA 274 , [2009] B.C.J. No. 1206, [2009] B.C.C.A. 274, a decision of the British Columbia Court ofAppeal. In that case, the decision was rendered by Madam Justice Kirkpatrick. POSITION OF THE YOUTH ON SENTENCING [58] In the defence submissions, a period of probation is stated to be the appropriate sentence in this particular matter. The basis ofthat is that the Youth has already served a custodial sentence at the Youth Detention Centre.

That sentence has been successfully servedwith positive reports of the progress made by the Youth. [59] A structure for reintegration is acknowledged as being important. However, the defence position put forward is that in thisparticular situation, this child has been significantly harmed by his family situation and that this family situation, as with many FirstNations offenders, is a direct result of the residential school system and the intergenerational negative effects caused by it.

[60] The positon also enunciated by defence is that this Youth offender is suffering from emotional issues caused by his upbringing.

He is characterized as being very troubled, and he is portrayed as being not in need of being reminded of his offence, but rather needingencouragement, praise, love, and affection which, according to the submission I have heard, has been absent from this child's upbringingfor a significant period of time. [61] When I posed the direct question to defence counsel about the duration of any order, noting in fact that a shorter probation ordermay be proposed by defence, it was acknowledged that any order that I make must be properly crafted in order to ensure that the Youthdoes receive all the resources necessary in order to produce a positive reintegration into the community. [62] From a mitigation perspective, defence says, and I accept, that the guilty plea made at a very early stage can be considered astatement of remorse.

I have also heard directly from the Youth. Again, I characterize his statements to the court as being an expressionof genuine remorse. There has been positive behaviour while serving custodial time at the Youth Detention Centre.

There is a fairpossibility and even perhaps a clear probability that with the correct intervention at this point that there is a positive future for this child,notwithstanding the seriousness of the charge that the Youth faces before this court. [63] Hence, I am being asked by defence to accede to a request for a straight probation order something in the range, I take it, ofwhat would be available under Crown’s proposal. I understand that to be something in the range of about 18 months.

DISCUSSION [64] I was not presented with any cases directly relating to what the sentencing range might be for an adult in a similar set ofcircumstances. I have reviewed a decision by our Court of Appeal in R. v. C.S.C., [2015] B.C.J. No. 2248; 2005 BCCA 493. That is adecision of Kirkpatrick J.A. in which the learned Madam Justice, on behalf of the court, was dealing with an appeal of an adult sentencewhich included, amongst other things, a charge of arson. The sentencing judge imposed a two year sentence on the arson charge butgave no credit for time served.

In that particular case, the court says at paragraphs 19 and 20, and 21 as follows: 19 The arson count is, as the Crown submitted, the most serious of the arson counts in the Code. The offender is liable toimprisonment for life. The penalty obviously reflects the extreme seriousness of an offence in which the lives of persons inhabiting adwelling are put at risk by recklessly caused fires. 20 The Crown has provided a number of authorities that more than amply demonstrate that the sentence imposed was demonstrablyfit.

Indeed, it may be said to be at the low end, evidently in recognition of all of the mitigating factors that the appellant has raised onthis appeal. 21 Lastly, although the judge failed to directly address the issue of credit for "time served", I would nevertheless infer that he wasaware of the issue and took it into account in opposing the sentence of two years. At para. 4 of his reasons he stated: In my view, a two-year sentence is not adequate even taking into account the four months he spent in custody.

I would be inclined toimpose something between three and three and a half years on top of whatever time he has served in custody now. [65] The concluding sentence of Justice Kirkpatrick is found at paragraph 23: It is clear that, in imposing sentence, the judge was of the view that a two year sentence would not adequately address the seriousness ofthe arson crime. The effective sentence imposed was 32 months.

As I have said, that sentence is amply supported on the authorities. [66] It is on that basis that I certainly accept that what is being proposed by Crown in this case is certainly within an adequaterange. [67] The question that I must directly address is whether or not the threshold requirements of s. 39(1)(

d) of the YCJA have been metin this case, being part of the so-called gateways to custody. In this case, I look to the guidance provided by our Court of Appeal in R. v.S.T. In that decision, Madam Justice Kirkpatrick reviewed the Ontario Court of Appeal decision in R. v.

R.E.W., (ONCA), [2006] 79 O.R. (3d) 1, and 207 O.A.C. 184, 205 C.C.C. (3d) 183, which extensively reviewed the meaning of "exceptional,"contained in s. 39(1)(d), as it modifies “circumstances” in which a custodial sentence may be imposed under it. [68] At paragraph 45, our Court of Appeal says as follows: In my opinion, the Ontario Court of Appeal did not say, as the Crown suggests, that the circumstances of the offender are to becompletely ignored in sentencing under s. 39(1)(d). Rather, the Court in R.E.W. endorsed the conclusions of Taylor J. in R. v. J.E.C.[2004 BCSC 1341 , [2004] B.C.J.

No. 2244, 67 W.C.B. (2d) 22 (B.C.S.C.)] in which he cited the remarks of Professor Bala inwhich the learned author noted: Section 39(1)(

d) gives a youth justice court judge a narrow discretion to impose a custodial sentence even if none of the conditions of …39(1)(a)-(

c) are satisfied, but it is clearly intended to be exercised only in "exceptional circumstances." This provision gives a judge thepower to impose a custodial sentence for a non-violent offence – even if there is not a prior history of offending or a failure to complywith non-custodial sentences – but only if there are "aggravating circumstances" such that the imposition of a non-custodial sentencewould be inconsistent with the principles articulated in

section 38, which adopts the principles of

section 3 of the YCJA. This narrowprovision might, for example, be invoked if a seventeen-year-old youth commits a hate crime such as the burning of a cross on the lawnof a black family,

an act which is an assault on fundamental societal values and which would cause widespread psychological harmamong many Canadians, as well as fear in the immediate victims. Even with this type of hate-related property crime, the age, maturity,and motive of the youth would be relevant to sentencing, and consideration would have to be taken of the effect of a custodial sentenceon the rehabilitation of the young person. The same hateful act committed by a misguided twelve-year-old might not merit a custodialsentence. Taylor J. then concluded:

[63] I do not take Professor Bala's comments to suggest previous history is irrelevant. Rather, it is the circumstances of the offence itself which make that previous history unnecessary when considering sentencing under section 39(1) (d). [64] In such a case the history of the offender becomes irrelevant as the focus is not upon the offender's history. Subsection (

d) seeks to introduce a sense of proportionality in exceptional cases where the circumstances of the offence are so aggravating that they outweigh what otherwise would be relevant considerations, such as the offender's background or other forms of disposition. While I agree with the basic premise of those remarks, I would frame the analysis differently.

As I read s. 39(1) (d), in "exceptional cases" the aggravating circumstances of the offence render a non-custodial sentence inconsistent with the purpose and principles of s. 38 because factors such as proportionality, responsibility and rehabilitation demand a custodial sentence. That determination will necessarily involve an assessment of the young person's circumstances and background. However, in the final analysis under s.39(1) (

d) the aggravating circumstances ultimately outweigh those "other relevant considerations" and, in that sense, render them irrelevant in the resulting imposition of a custodial sentence. [ 69 ] The court then goes on at paragraph 50 to note various cases where the circumstances of the offence were found to be sufficiently aggravating to meet the threshold requirements of s. 39(1). In particular, three cases are cited involving arson and those cases are: LSJPA-0739, 2007 QCCA 1098 in which a youth set fire to two police cars, causing a loss of $20,000; R. v.

A.B.W. , 2003 BCPC 455 where a youth broke into an elementary school and caused $30,000 in damage resulting in the school closing for four days and in which it was described as a "calculated" exercise in the destruction of public property. Then the case of R. v. D.B., [2007], 273 Newfoundland, and P.E.I.R. 314, where there was a deliberate and concerted attack on schools within a few hours in which six schools were broken into and two of those break-ins involved arson. [ 70 ] There are also references to arson and wilful property damage further cited in R. v.

C.B. , [2004] Y.K.Y.C. 2, where a youth set fire to his grandmother's house using a propane tank. Finally, reference to a case involving arson, break and enter, mischief, and failure to comply with release conditions being R. v. B.W. , [2004] O.J. No. 5905 . In that case, the youth broke into a community centre, stole alcohol, and returned four nights later to set a fire that destroyed the community centre at a value of $300,000, and then was arrested and released on conditions which were breached. [ 71 ] In my view, those authorities and the direction of our Court of Appeal in R. v.

S.T. establishes that in a case of this nature, that I must consider whether or not, in the whole of the circumstances of this case, that it meets the requirement of an exceptional case as contemplated by s. 39(1) (d). [ 72 ] I am of the view that this is one of those exceptional cases.

That conclusion is based not only on the nature of the offence, that is arson, but the target of the offence, which was the family home, and for the reasons that have been described above that motivated this Youth to commit that offence. [ 73 ] I am also of the view, and as I understand it I must, assess the Youth’s personal circumstances and background and especially the concern about the risk of this Youth committing further offences in the future, all as part of my consideration of aggravating factors.

Those circumstances and that risk are of such aggravating proportions that in my view, they make a custodial sentence appropriate. Arguably those circumstances and that risk by their very nature on their own also contribute to the exceptional case threshold. Therefore, I am of the view that the custodial sentence as proposed by Crown in this case is a fit and appropriate sentence, taking into account all of the requirements of the YCJA . CONCLUSION [ 74 ] Therefore, the sentence which I will impose upon this Youth will be a six-month deferred custody and supervision order.

The terms and conditions have been suggested in Mr. Burke's report. I will make reference to the standard conditions utilized on Vancouver Island, starting with Number 500. This is all with respect to the deferred custody and supervision order. [ 75 ] 500: You shall keep the peace and be of good behaviour. You shall appear before the Youth Justice Court when required to do so by the court. [ 76 ] 501: You shall immediately report in person to the Youth Probation Office, and the address here in Duncan will be provided and inserted. And after that, you shall report as and when directed by the youth worker.

In any event, you shall report to the Youth Probation Office no later than 12 noon tomorrow. [ 77 ] MR. TOMLIN: Your Honour, sorry, if I may? [ 78 ] THE COURT: Yes. [ 79 ] MR. TOMLIN: Ms. Craig is the social worker that is involved. She plans to stay here till the Youth is released onto the order and then escort him to the Youth Probation Office so that report immediately upon release will work. [ 80 ] THE COURT: If that works. I was only mindful of the time, but I will make it so it will be to report no later than -- well, no later than today's date.

I will clarify it in that fashion. [ 81 ] The next condition is 507: You shall commence the term of this order by residing where directed by your youth probation officer, and you are not to change your residence without the prior written permission from your youth probation officer. [ 82 ] The next condition: You shall not possess any incendiary devices or inflammatory or explosive substances which shall include but without limitation to lighters, matches, and fireworks. [ 83 ] Next condition: You will participate in cultural programs, including but not limited to healing circles or family circles or other activities identified by [deleted for publication] Tribes elders and advisors from [deleted for publication] .

[ 84 ] MR. TOMLIN: Your Honour, could we add to that, "as directed by the youth worker?" [ 85 ] THE COURT: As directed by the youth worker or youth probation officer I think is the term I have been using. [ 86 ] MR. TOMLIN: Thank you. [ 87 ] THE COURT: Next, you shall attend school or a day program as directed by your youth probation officer, and you shall not be absent except with the written permission of a medical doctor.

Or… (I am going to add) or your youth probation officer. [ 88 ] 511: You shall obey a curfew by being inside your residence from 8 p.m. to 7 a.m. daily unless in the company of an adult approved of in writing by your youth probation officer. I am just going to pause on that. That leaves the day open, is that … [ 89 ] MR. TOMLIN: That is why I had asked for a house-arrest term for the deferred custody order. [ 90 ] THE COURT: Yes.

I think it should be - that it would be appropriate I think for the house arrest provision to be applicable instead of that curfew provision. [ 91 ] So I am going to substitute 512: You are to remain within your residence at all times except with the written consent of the youth probation officer -- (and I am going to say) or an authorized representative of the residence in which you are to be residing, and such permission is to be given only for compelling, personal, family, educational or employment reasons or in the company of your youth probation officer or an adult approved in writing given in advance by your youth worker or by a person designated by the residence in which you are directed to reside. [ 92 ] The next provision will be counselling, 551: You shall attend, participate in, and successfully complete any assessment, counselling or program as directed by your youth probation officer which may include -- I am going to include a forensic assessment, counselling or treatment through Youth Forensic Services, and you shall comply with all rules and regulations of any such assessment, counselling or program. [ 93 ] Then there will be a separate order: You shall attend, participate, and successfully complete a full-time attendance program such as, but not limited to Camp Trapping, or Head Start.

And then there will be a … [ 94 ] MR. TOMLIN: Your Honour, I am sorry, as directed by the youth worker? [ 95 ] THE COURT: As directed by the youth probation officer. And then 556: You shall attend, participate, and successfully complete an intensive support and supervision program to the satisfaction of the youth probation officer, and you shall obey all rules and regulations of that program. [ 96 ] MR.

TOMLIN: Your Honour, just -- I have no further submissions in terms of proposed conditions for the deferred custody order save and except that pursuant to s. 42(2)(p), the mandatory conditions in an order under s. 105 must be included in the deferred custody order. [ 97 ] THE COURT: Okay. So that is 42 -- sorry, the … [ 98 ] MR. TOMLIN: 42(2)(

p) is the deferred custody -- [ 99 ] THE COURT: Yes. [ 100 ] MR. TOMLIN: -- provision option, and within it, it references the mandatory conditions of 105(2). [ 101 ] THE COURT: 105(2). Okay. Have I missed one of those? [ 102 ] MR. TOMLIN: (d), for example. [ 103 ] THE COURT: Okay. [ 104 ] MR. TOMLIN: (e). [ 105 ] THE COURT: All right. So I have got everything down to (

c) correct? [ 106 ] MR. TOMLIN: Correct. [ 107 ] THE COURT: All right. And then I will add in from s. 105(2)(d): You are to inform the -- is it the provincial directors how we designate it or is it your youth probation? [ 108 ] MR. TOMLIN: Yeah. They are included in the definition. [ 109 ] THE COURT: All right. So you shall inform the provincial director immediately on being arrested or questioned by the police. [ 110 ] (e): You are to report to the police or any named individuals instructed by the provincial director. [ 111 ] (f), I guess, I have to add in also, is that correct? [ 112 ] MR.

TOMLIN: Correct. [ 113 ] THE COURT: You are to advise the provincial director of your address of residence on release and after release, you are to

report immediately to the clerk of the Youth Justice Court or the provincial director -- sorry. [ 114 ] MR. TOMLIN: I think you can just reference the conditions in 102 -- [ 115 ] THE COURT: Yes. [ 116 ] MR. TOMLIN: -- (2)(f). [ 117 ] THE COURT: Yes. And after release, report immediately to the clerk of the Youth Justice Court or the provincial director of any change of (

i) in that address; (ii) in your normal occupation, including employment, vocational or educational training, and volunteer work; (iii) in your family or financial situation; and (iv) that may reasonably be expected to affect your ability to comply with the conditions of the order. [ 118 ] And then (g), I believe, is necessary also: You are not to own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance except as authorized by a court order. [ 119 ] And (h), you are to comply with all reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional or of the -- it is the -- [ 120 ] MR.

TOMLIN: It is mandatory, but it is not applicable given -- [ 121 ] THE COURT: All right. [ 122 ] MR. TOMLIN: -- it is a deferred custody order. [ 123 ] THE COURT: Conditional supervision in order to prevent a breach of that condition or to protect society. So I think -- and there is none of -- I think those are all the mandatory conditions. And I think as far as what I see in ss. (3), the remaining conditions have been covered off. [ 124 ] So then with respect to the probation order it is of a duration of 18 months, I am going to try to abbreviate that by giving a

summary and then making reference to the particular provisions. It will start with Number 500: keeping the peace and be of good behaviour. You shall appear before the Youth Justice Court when required to do so by the court. [ 125 ] 502: Within 72 hours after completing of your deferred custody and supervision order, you are to report in person to the Youth Probation Office at the Duncan location.

And after that, you shall report as and when directed by the youth worker. [ 126 ] The next condition is that you shall commence the term of this order by residing at the residence approved by the youth worker, and you shall not change your residence at any time without first obtaining the written consent of the youth worker. [ 127 ] There will be the same provision concerning incendiary devices that is contained in the deferred custody and supervision order. [ 128 ] There will be the same provision concerning cultural programs as appears in the deferred custody and supervision order. [ 129 ] There will be the same provision concerning attending school or day program as it appears in the deferred custody and supervision order. [ 130 ] There will be no curfew condition, but I am going to put as a provision that you shall comply with the rules of any residence in which you are directed to reside in. [ 131 ] I am going to put in the same provision as it appears in the deferred custody and supervision order concerning assessment and counselling.

And there will also be the same provision concerning completing, attending full-time attendance program as contained in the deferred custody and supervision order. And there will be the same provision concerning attending and participating in the intensive support and supervision program. [ 132 ] MR. TOMLIN: Thank you. [ 133 ] THE COURT: Are there any other conditions the Crown would be seeking or wishes to make submissions on? [ 134 ] MR. TOMLIN: Well, just for the probation order. I think just the generic no weapon term would be appropriate. [ 135 ] THE COURT: All right.

I do not think that that is an unreasonable suggestion. So that is the 536: You shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 136 ] Now, so that it is clear, that the term of the probation order is for a period of 18 months. [ 137 ] MR. TOMLIN: And to follow the deferred custody order? [ 138 ] THE COURT: And as to become effective and to follow the completion of the deferred custody and supervision order. [ 139 ] MR. TOMLIN: Your Honour, it is a secondary DNA offence. He fled the residence after he lit the fires.

Notwithstanding his youth, I do believe it would be appropriate for him to provide the DNA sample. Should you order it, I would ask that he provide that on or before the 23rd of February at 4 p.m. at the Duncan or Cowichan detachment. That would give him a week to do so. [ 140 ] MR. SHEETS: I do not think it is appropriate, Your Honour. Given his plea at the earliest opportunity, given his extreme youth, given the conditions Your Honour has imposed, I do not think a DNA order is required.

[ 141 ] THE COURT: What happens when he becomes an adult, what happens to the -- to that, does it -- [ 142 ] MR. SHEETS: It stays in the DNA database. [ 143 ] THE COURT: Well, I am not going to make the order. It is discretionary. I am doing that mindful of what is being identified as a risk, but I am sure Mr. Sheets will be explaining to the Youth the significance of the DNA order that I have not made today. [ 144 ] All right. Anything further with respect to this matter? [ 145 ] MR.

TOMLIN: Finally, Your Honour, I do seek an order pursuant to s. 119 for the disclosure of the s. 34 report to both the youth worker and to the Youth Group Home Manager, or you could phrase it as the manager of any residence where he is directed to reside. I think that it is appropriate under s. 119. The actual

section you have to refer to would be (1)(s), desirable in the interest of proper administration of justice. For them to supervise him, I think it is appropriate that they have those orders. [ 146 ] THE COURT: Mr. Sheets, any issue with that? [ 147 ] MR. SHEETS: I just have an issue with further dissemination of that. I do not want it to end up in anyone else's possession, so if there could be a restriction on it, it seems, and I do not know if there is provision for destruction. [ 148 ] THE COURT: I am just looking at the section. Does it … [ 149 ] MR. TOMLIN: I think it is unlawful for them to distribute it, so … [ 150 ] THE COURT: Well, that is the -- yes, subsection (

s) I think contemplates that, does it not? I mean, the -- it is -- you have to have a valid interest in the records. [ 151 ] MR. TOMLIN: So I am asking you to specify in particular here. [ 152 ] THE COURT: Yes. [ 153 ] MR. TOMLIN: (a). [ 154 ] THE COURT: Well, I will make the order as being sought by Crown. [ 155 ] MR. TOMLIN: The provincial director. [ 156 ] THE COURT: I am just trying to deal with the concern being expressed by Mr. Sheets as to whether or not there is some potential for redistribution. [ 157 ] MR.

SHEETS: I am concerned about principals of schools and other people that may not have the -- [ 158 ] MR. TOMLIN: I am not looking for that. Mr. Burke is aware of the limitation on it. And should the need arise for further disclosure - like, for example, if you frame it in the -- to a manager of any residence where he is directed to reside as well as the provincial director, that would encompass, for example, if he does get referred to Camp Trapping or to Head Start, they would have access to that and be aware of it. [ 159 ] MR.

SHEETS: And so ostensibly, whoever his billet was in Campbell River, that is my concern is. [ 160 ] THE COURT: Well, I . . . [ 161 ] MR. SHEETS: I mean I am sure that Mr. Burke can inform him. [ 162 ] THE COURT: Well, I am -- I have more concern that I may be unduly limiting distribution by putting that type of restriction on it. It may be in order to find a suitable placement that you have to at least make sure you have got people that feel they are capable of dealing with any of the potential issues that are raised in the reports. So if -- I think there is a discretion under that

section that once it is -- or at least I am presuming that there is -- that if I grant the order that is being sought by Crown under subsection (s), that the -- that certainly, although the report may not be provided, a description of some of the concerns raised in the report can be shared in order to secure an appropriate placement for the child. So I am not going to put any additional limitations other than what is contained within s. (s). I will make the order that is being sought in the terms that Crown has indicated. [ 163 ] MR. TOMLIN: Thank you, Your Honour. [ 164 ] THE COURT: All right.

Now, is there anything else I should be dealing with at this point? [ 165 ] MR. TOMLIN: No. [ 166 ] THE COURT: Okay. Just Mr. [the Youth], can you stand up, please. [ 167 ] This will be further explained to you. I understand there has been a lot of talk about you today. It will be explained to you all the things you must do. I am just emphasizing this, and I am not singling you out here. Because I say this to everyone whether they are a youth or they are an adult, when the court orders you to do things, those are things you must do. Okay. They are not just a suggestion, they are things you must do.

I want to find out that you have been an absolute star when it comes to abiding by all these conditions and that you have put yourself on the right track; so that you will re-engage with your family at the appropriate time, and that you make a success out of your life and not the sort of thing that you were telling people who are writing the reports that in the future you thought you might be in jail. That is not where anyone wants you to be, and that is not where I want you to think you should be or deserve to be,

okay. [ 168 ] All right. Good luck to you. [ 169 ] MR. TOMLIN: Thank you, Your Honour. [ 170 ] MR. SHEETS: Your Honour.